Watch Out for the Coming TAFTA/TTIP "Science-Based" Negotiating Trick [Updated]

As anyone who has been following me recently will know, one of the most important geopolitical developments is the decision to negotiate a Transatlantic Free Trade Agreement (TAFTA), also known as the Transatlantic Trade and Investment Partnership (TTIP), which makes clear its kinship with the Trans-Pacific Partnership Agreement (TPP) currently being drawn up.

Equally, you will know that my chief concern with TAFTA/TTIP is not so much any section on intellectual monopolies - although those might well turn out to be ACTA 2.0 - but the clauses dealing with unmemorably-named "Investor State Dispute Resolution".

I've explained what these are and why they are so dangerous on Techdirt (twice, actually.)  In a sentence, this system allow a company to sue a country, directly, for alleged loss of future profits caused by tiresome things like environmental legislation or health and safety laws.

These kind of disputes are also moving into the area of intellectual monopolies - for example, Canada is being sued by Eli Lilly for refusing to grant a patent on one of its drugs.  Worryingly, the European Commission mandate to its negotiators for TAFTA/TTIP explicitly allows precisely this kind of action.

However, here I want to concentrate on another aspect of TAFTA/TTIP: how the term "science-based" will be used in an attempt to ram through a range of spectacularly unscientific approaches that are currently allowed in the US, but not in Europe.

Here's what an article on the subject says:

To export agricultural goods, the U.S. also exports food safety standards, or at least gets other countries to accept our way of growing raw materials and processing them into food as justified by standards “based on science.” The U.S. Department of Agriculture and the U.S. Trade Representative will soon see if the member governments of the Trans Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) negotiations, launched by the Obama administration, will accept the way U.S. chicken processors butcher the bird. A National Chicken Council press release welcomed the launch of the TTIP negotiations: “When TTIP negotiations are successfully concluded, U.S. poultry producers look forward to marketing $500 million of products to the EU on an annual basis.”

 The article is principally about the following incident:

The death of a U.S. federal poultry inspector, reported on April 25 in the Washington Post, shone a bright light on the high speed processed, chlorine rinsed chicken that the U.S. wants to export not just to the EU, but globally. The inspector, 37 year old José Navarro, worked for five years in the midst of a chemical spray that the USDA allows processors to use to decontaminate the feces on chickens that results from ever faster processing line speeds. Navarro’s lungs bled out. The U.S. Occupational Health and Safety Commission (OSHA) has not determined the cause of Navarro’s bleeding to death. An OSHA spokesperson said the agency was so understaffed, it would take 131 years to inspect every facility under its authority for worker safety violations.

That hardly inspires confidence in the substance being sprayed on the chickens.  So a legitimate question is: how do we know that it's safe?

Both the USDA and the National Chicken Council (NCC) defended the use of the poultry rinse, pointing out that the Food and Drug Administration had accepted the poultry industry’s claim that the rinse was Generally Recognized As Safe (GRAS). GRAS is only a food safety designation, not a worker safety rule. Stan Painter, the president of the federal meat and poultry inspectors union, said his poultry inspectors reported weekly about coughing, sneezing, tight throats and itchy eyes that clear up only on the weekends when they are not working. However, “based on science” standards only protect traded goods, not the workers who produce them.

Here's some more information on that "Generally Recognised As Safe" idea from the US Food and Drug Administration site:

For a food additive, privately held data and information about the use of a substance are sent by the sponsor to FDA, which evaluates those data and information to determine whether they establish that the substance is safe under the conditions of its intended use (21 CFR 171.1). Thus, for a food additive, FDA determines the safety of the ingredient; whereas a determination that an ingredient is GRAS can be made by qualified experts outside of government.

Here's how much scrutiny the FDA gives:

Within 30 days of receiving a notice FDA will inform the notifier in writing of the date on which the notice was received. FDA then evaluates whether the submitted notice provides a sufficient basis for a GRAS determination and whether information in the notice, or otherwise available to FDA, raises issues that lead the agency to question whether use of the substance is GRAS.

So, basically, chlorine rinse for chickens, that may well have caused an operator's lungs to bleed until he died, has been approved because the manufacturer says it's checked, and everything's OK.  This is the "science-based" approach that US negotiators will invoke when negotiating with the EU in an attempt to force chlorine-soaked chickens on European consumers.

Nor will it stop there.  Another hugely contentious area is, of course, genetically-modified food.  Here, too, self-certification is essentially all the US has to justify approval:

Under U.S. regulations, biotech companies are not required to submit studies to demonstrate the safety of their products. The companies voluntarily submit only summaries of data vetted by company risk managers and without the methodological explanations of the studies that permit the peer review that is characteristic of scientific method.

What US companies really mean by "science-based" in this context is illustrated by the following:

Monsanto is threatening the European Food Safety Authority (EFSA) with legal action after the European Union’s central science agency published data relating to a Monsanto genetically modified (GM) maize form.

This was data submitted to establish that the GM maize was not harmful - in other words, basic scientific data required for approval.  And yet Monsanto was threatening the EFSA for daring to reveal those basic facts.

That shows what US companies mean by "science-based": that they get to make claims about their products that others are not allowed to check.  But the essence of "science-based" is that others can and *must* be able to check the results claimed.  The use of the impressive-sounding "science-based" argument turns out to be a sham - simply a way of browbeating legitimate concerns about health and safety.

If companies truly believed in "science-based" approaches, they would freely release all their safety data, and would encourage independent third-parties to check their validity.  But that won't ever happen, because the invocation of "science-based" is pure bluster.

So watch out for the use of "science-based" arguments during the coming TAFTA/TTIP: I predict it's a phrase we'll being hearing a lot of, soon.  And when you hear it, remember that it's just a shabby negotiating trick that sullies the good name of science.

Update: As I predicted, "science-based" approaches are at the heart of TTIP.  And here is how the European Commission is using the underhand trick I outlined above:

Monsanto and the pesticide industry breathed a collective sigh of relief on 12 November 2015. The findings of an investigation into the toxicity of glyphosate by the European Food Safety Authority (EFSA) and EU Member States were in stark contradiction to the March 2015 conclusion by the International Agency for Research against Cancer (IARC), a body of the World Health Organization (WHO), that this agricultural herbicide was probably causing cancer to humans. If validated, this conclusion could cause a partial ban of glyphosate in the EU.

This article takes a closer look at the arguments from both parties, and reveals two strikingly different processes that led to these conflicting assessments. In short, the WHO process was transparent, stuck to conventional scientific methodology and looked at glyphosate-containing herbicides (as glyphosate is never used alone in the real world), whereas EFSA's route was based on a 'peer review' by anonymous EFSA and national public officials relying on undisclosed industry-sponsored studies that looked at glyphosate alone. The European Commission, which will have the last say on whether or not glyphosate will be re-authorized in the EU, and under which conditions, must now decide what to make of this interesting piece of 'science'.

It's not hard to guess which kind of "science" they will choose...